More than two weeks ago, the attorney general testified to the House Judiciary Committee in categorical terms: “With regard to potential prosecution of the press for the disclosure of material, that is not something that I have ever been involved in, heard of, or would think would be a wise policy.”

Holder managed to make the situation even worse this week when he arranged to have a series of meetings with news organizations but then decreed that the sessions would be off the record.

What exactly Holder is up to is anybody’s guess. He has given only one interview during this debacle, telling Daniel Klaidman of the Daily Beast
that “our laws and guidelines need to be updated” for leak investigations. His aides told Klaidman that Holder had “a creeping sense of personal remorse” about the leak probes, which on his watch are unprecedented in number and unreasonably sweeping.

But is his “remorse” real and his vow to fix the problem genuine? Or is he just saying soothing words until the controversy recedes? It wasn’t encouraging that Holder’s longtime friend Reid Weingarten told the New York Times that he had heard no such expressions of remorse from him.

I asked a Holder adviser whether Holder would commit to any of the changes to Justice Department guidelines for prosecutors that First Amendment advocates say — and even some administration officials admit — are necessary. (For example, the guidelines, last updated in 1982, don’t cover e-mail.) The adviser said that the attorney general, who promises to produce new guidelines by July 12, was not yet ready to endorse any changes.

I asked if Holder, or the administration, would explicitly endorse the “shield” legislation proposed by Sen. Chuck Schumer (D-N.Y.) protecting journalists in certain leak prosecutions; Holder had endorsed the same legislation in a letter to the Senate in 2009, and the White House recently encouraged Schumer to reintroduce it. I eventually got a statement not from Holder but from Matt Lehrich, an assistant press secretary in the White House, saying “the administration strongly supports” the Schumer bill.

I hope that’s true, and I’m encouraged by claims that Holder plans to lobby lawmakers for the shield law, but the record so far isn’t encouraging. The Schumer proposal was itself watered down in 2009 at the administration’s insistence, and even that relatively weak bill died in Congress after the White House declined to push for it. A stronger bill offered by liberal Rep. John Conyers Jr. (D-Mich.) and tea party Rep. Ted Poe (R-Tex.) isn’t supported by the administration and has little chance of passage.

Prosecutors, no longer restraining themselves, now need courts to restrain them. The shield law would do that by requiring prosecutors to go to a federal judge before they suspend certain press freedoms. “This is too important to be left to internal guidelines,” says Kurt Wimmer, a lawyer representing the newspaper industry. “This isn’t about what you serve in the cafeteria. This is the First Amendment.”

It’s not too late for Holder to make a serious push for a shield law. As a bonus, he might also restore his credibility.

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